The DeMuniz Commission Report
by: Jessbarton • January 2, 2012 • no comments
Late last week the Commission on Public Safety issued its Report to the Governor, and there's some good stuff in there. It even impressed Western Oregon University criminologist William "Bud" Brown, who found the Report so good he was "surprised it made it to the printer." Brown explained that the Report "raises the issues of prison and Measure 11 being the answer to public safety. It does a remarkable job of pointing out public ignorance."
The Report's page 15 states the key piece of public ignorance: "Even though crime rates have been steadily declining for years and are now near 40 year lows," "most people do not know crime has dropped." For example, the Report explains, "over half of Oregonians believe that crime rates in Oregon have increased over the past year." Id.
The graph on the Report's page 7 nicely proves that this public conception is a sad misperception. The graph shows that from 1995-2010, Oregon's violent- and property-crime rates each dropped by about 50%.
The graph also shows that from 1995-2010, California and New York saw reductions in their violent- and property-crime rates that essentially mirrored Oregon's reductions. But the three states' virtual mirror-image reductions coincided with radically different incarceration policies. While Oregon increased its incarceration rate by nearly 80%, California increased its incarceration rate by only about 5%, and New York reduced its incarceration rate by over 20%. The fact that three widely divergent states saw significant and essentially identical crime-rate reductions regardless of how much more-or how much less-they spent on incarceration is compelling proof that incarceration rates have little effect on crime-rate reductions.
Still, the Report has its flaws. One is its misleading claim that "Oregon's sentencing guidelines reduced judicial discretion in sentencing offenders." Report at 17. In fact, the discretion judges thought they had during the pre-guidelines era was a mirage. For example, a judge could give a defendant 20 years with a 10-year "judicial" minimum for a Class A felony, but that sentence rarely resembled what the defendant actually served. The parole board could and routinely did set aside judicial minimums. Moreover, the maximum term was only a "ceiling" on the defendant's actual sentence that the board set, and that usually was far less than what the judge imposed.
The Report's major flaw is its fixation on how mandatory minimums restrict judicial discretion. Certainly these restrictions are a problem, but in most cases mandatory minimums simply aren't in play. In cases where they're not in play (and frequently, even when they are in play), judges still have significant sentencing discretion.
For example, if mitigating factors are present (as they usually are), judges may impose probation instead of incarceration, or incarceration of less than the presumptive minimum. If aggravating factors are present, judges don't have to depart. They still may impose presumptive sentences. Or they may depart, but stop short of imposing departure maximums. And in most cases where consecutive-sentence factors are present, judges still may impose fully or at least partially concurrent sentences.
Focusing on the problem of limited judicial discretion distracts from a far more serious problem. The guidelines apply in every felony case. Their principle that the state's sentencing law be applied "consistent with available resources, . . . [by] balancing resources between imprisonment and supervision," id. at 6, requires judges to consider the financial costs of their sentencing decisions. Although the Report mentions this principle, it doesn't mention that judges routinely violate the principle.
The Washington County case of State v. Pamela Lynne Gibson epitomizes this problem. 1 Ms. Gibson, who was not driving impaired, did what most every driver will do sometime in his or her life-she ran a red light. But seconds later Ms. Gibson did what, but for the grace of God, most of us haven't done-she got into an accident and killed someone. She was convicted of criminally negligent homicide. The victim's family forgave her. No mandatory minimum was in play. By the time she was sentenced at least one mitigating factor authorizing departure probation was present-Ms. Gibson was pregnant.
If a case ever screamed out for departure probation, this was it. But the judge told Ms. Gibson, "I believe justice [seriously?] requires me to impose the prison sentence." Then, in what must rank among the top "Orwellian" courtroom moments, the judge said, "You know, Ms. Gibson, there's one solemn benefit from going to prison: You can hold up your head when you get out and know that you have paid dearly for this." The judge descended from the bench and bid Ms. Gibson farewell, by shaking her hand.
Judges having too little sentencing discretion is much less a problem than how judges do, and do not, exercise the discretion they already have. As long as sentencing discretion is exercised by people who are cavalier about the financial costs of their decisions, and who base their decisions on the notion that defendants should embrace prison as some sort of "solemn benefit," Oregon will have a problem that enhanced judicial discretion won't fix.
On the other hand, initiatives intended to ensure that judges fulfill their legal obligation to consider the financial costs of their sentencing decisions would help fix the fundamental problem. That should be the focus, and it would take the Commission a long way toward meeting its goal of getting "the best return on our investment in public safety spending." Id. at 17.
Information about Ms. Gibson's case is available at OregonLive here.
